Section 232 Offers Chance to Review Presidents' Exercise of Legislative, Judicial Powers, Importer Argues

October 12, 2023 by Jacob Kopnick|Top News

The Supreme Court should take up a case on whether President Donald Trump lawfully expanded Section 232 steel and aluminum duties to cover "derivative" products to decide how separation-of-powers principles apply to statutory interpretations delegating vast legislative power to the executive, petitioner PrimeSource Building Products argued. Filing a brief in response to the government's defense, PrimeSource claimed that its case gives the court a chance to "do something about" the government's position that the executive can exercise both Congress' legislative powers and the judiciary's "interpretive responsibilities" (PrimeSource Building Products v. United States, Sup. Ct. # 23-69).

The PrimeSource brief said it isn't claiming that the power to impose duties on goods in the name of national security was improperly delegated, but rather that separation-of-powers principles bar courts from deferring to the executive's interpretation of the limits on that delegation. Instead, courts are required to settle ambiguities in those limits "in favor of constraining the delegation," the brief said.

PrimeSource originally brought its case to argue that Trump expanded the duties onto the derivative products in violation of procedural time limits, which stipulated that the president must make a tariff action within 90 days of receiving a report from the commerce secretary on the need for the duties. The U.S. Court of Appeals for the Federal Circuit said the president is allowed to violate these time limits when the expansions are part of a broader "plan of action" (see 2302070030).

The government reiterated the Federal Circuit's ruling in its reply brief, arguing that the word "action" includes a course of actions (see 2309260036). "No doubt," PrimeSource replied, though it said that the question is inevitably raised on whether duties on derivatives was considered as part of Trump's original plan of action. The answer to this is a definitive "no," the brief said. While the government said the president must only discuss the "general character" of his plan, PrimeSource noted how the president also is required to set the nature and duration of the duties. He cannot do this if he hasn't even identified what imports the duties will cover, the brief said.

The U.S. also claimed that in its present state, the non-delegation doctrine places "almost no meaningful limit on Congress' ability to bestow naked legislative power to the Executive Branch." As a result, the only real limits come from Congress, PrimeSource replied. Despite this, the Federal Circuit's standard set in Maple Leaf Fish Co. v. U.S., which says courts must accept the president's construction of limits on his delegated power, has the effect of "watering down those limitations." As a result, the government's defense shows exactly why the court must review this case, the brief said.

PrimeSource invoked the major questions doctrine -- a principle recently adopted by the Supreme Court that says that executive action on issues invoking major elements of the economy must be explicitly delegated by Congress. The government position that the high court has yet to apply the major questions doctrine to "construe the statutory limits on a delegation of vast legislative powers is a reason to grant review, not deny it," the brief said. Without review, the Federal Circuit will carry on with Maple Leaf.

The government's defense of the Maple Leaf standard is "unconvincing," PrimeSource added. The U.S. said the only question is whether the president can extend tariffs beyond the procedural limits in light of new information, adding that this is not a delegation of vast legislative power. This is not the point, the petitioner claimed, since the procedural requirements are the only "meaningful" limit on the "nearly unfettered delegation" of the Congressional power to levy duties and regulate international trade.

"It is an odd conception of separation of powers to require careful scrutiny of whether Congress intended the Executive to wield extraordinary legislative powers yet exercise no special care in ensuring the Executive adheres to the statutory limits on exercising those vast and unusual powers," the brief said.